Judgement day

The NHS faces an annual bill of£220m a year if the Department of Health loses this week's appeal against a High Court judgement which stipulated that it should pay for residential nursing care.

N o doubt the person who, in 1991, told 55-year-old Pam Coughlan that her place in an NHS unit for disabled people would be her home for life, now rues that day.

Less than five years later, North and East Devon health authority decided it wanted to close the unit - a purpose-built facility providing respite care, long-term nursing care and rehabilitation.

Ms Coughlan, who was paralysed in a road accident, decided to fight. She won a High Court case last December, partly on the grounds of that promise.

But her plight became a test case for thousands of others. And now the Department of Health is putting its weight behind an HA appeal which, should it fail, has huge implications for the NHS.

Crucially, the judge in the first High Court case, Mr Justice Hidden, ruled that nursing was health not social care.

In doing so, he was seen to be stopping the NHS off-loading responsibility for long-term care on to social services.

Various disability and relatives' groups and the Royal College of Nursing, which has long campaigned for nursing care to remain free, seized this opportunity to highlight this backdoor way of making people pay for nursing care.

A few months later, the Royal Commission on Long-term Care also decided in favour of free nursing care, wherever it was provided.

As it stands, Mr Justice Hidden's ruling completely undermines existing health and social care legislation - and challenges the current interpretation of the health secretary's powers under a confusing array of legislation (see box).

But the debate has moved from the legal niceties to become a highly sensitive political issue.

The DoH has backed North and East Devon HA, whose appeal began this week. Meanwhile, the RCN has put its weight behind Ms Coughlan.

'If the original finding is upheld,' says Helen Caulfield, solicitor and policy adviser at the RCN, 'it would simply mean all nursing care would be funded by the NHS'.

DoH officials refuse to be drawn on the implications of the case. 'We need clarification of the law,' admits a spokesperson. 'The implications are very wide and don't just involve the local HA.'

Nicola Mackintosh, solicitor for Pam Coughlan, says: 'This is not just about whether the NHS is responsible for long-term nursing care, but about the whole future of the NHS.

'If the secretary of state can remove long-term nursing care from the NHS, he can do that with other nursing, ambulance services or with the whole of the NHS.'

This may seem a distant proposition. More immediate is the threat of an extra£220m a year on the NHS bill if it has to cover nursing costs - a figure based on estimates from the royal commission.

Since 1993, social services have footed the bill - including the nursing care costs - of nursing home placements if the person cannot afford to pay. But if this case is upheld, the NHS will have to pay the nursing cost elements, and complicated arrangements will have to be made with social services to calculate the costs.

Even more alarmingly, it might mean that patients placed in nursing homes since 1993 could lawfully claim compensation.

'We seem to have an HA almost unilaterally redefining its continuing care responsibility,' says Michael Hake, director of Solihull social services and chair of the Association of Directors of Social Services organisation and development committee.

'The public policy implications of the RCN position are enormous. We need a legislative framework that simplifies the interface between health and social care.'

It is not the first time such issues have been raised. Back in 1994 the health service commissioner told Leeds HA to refund the money paid by the wife of a man who had suffered brain damage and been moved to a nursing home.

The commissioner argued that the NHS should take financial responsibility for the man's care, forcing the DoH to issue new guidance clarifying NHS responsibility.

In 1996, the commissioner took up the subject again after a number of similar complaints. 'Many HAs made provision for long-term care for some severely disabled patients but often did not have clear written criteria about eligibility for such care,' he said then.

The Appeal Court ruling should be given before the summer recess. If the appeal fails, it could mean a swift redrafting of the Health Bill or, more likely, a further appeal to the House of Lords.

Meanwhile, Pam Coughlan and the two other residents still in Mardon House are staying put.

Ironically, the NHS had always said it would fully fund their placement in a nursing home - because of that 'home for life' promise made in 1991.

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